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affirming dismissal of mother's modification petition while accepting her evidence as true and affording her every favorable inference
Summary of this case from R.M. v. C.C.Opinion
2014-05630, Docket No. V-3610-09.
10-07-2015
In the Matter of Heladia CRUZ, appellant, v. David FIGUEROA, respondent.
Helene Bernstein, Brooklyn, N.Y., for appellant. Joel Borenstein, Brooklyn, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Anna Kou and Barbara H. Dildine of counsel), attorney for the child.
Helene Bernstein, Brooklyn, N.Y., for appellant.
Joel Borenstein, Brooklyn, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Anna Kou and Barbara H. Dildine of counsel), attorney for the child.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Opinion Appeal from an order of disposition of the Family Court, Kings County (Leticia M. Ramirez, J.), dated April 29, 2014. The order of disposition, upon the granting of the father's motion, made at the close of the mother's case at a fact-finding hearing, for judgment as a matter of law dismissing a petition by the mother for modification of a custody order, dismissed the petition.
ORDERED that the order of disposition is affirmed, without costs or disbursements.
“An order of custody or visitation may be modified only upon a showing that there has been a subsequent change of circumstances such that modification is required to ensure the best interests of the child” (Matter of C.H. v. F.M., 130 A.D.3d 1028, 1028, 14 N.Y.S.3d 482 ; see Vollkommer v. Vollkommer, 101 A.D.3d 1108, 1108, 956 N.Y.S.2d 550 ; Matter of James R.O. v. Cond–Arnold, 99 A.D.3d 801, 801, 952 N.Y.S.2d 249 ; Matter of Aronowich–Culhane v. Fournier, 94 A.D.3d 1114, 1115, 943 N.Y.S.2d 174 ). In deciding a motion for judgment as a matter of law dismissing a petition for failure to establish a prima facie case, the court must accept the petitioner's evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom (see Matter of C.H. v. F.M., 130 A.D.3d at 1028, 14 N.Y.S.3d 482 ; Matter of James R.O. v. Cond–Arnold, 99 A.D.3d at 801, 952 N.Y.S.2d 249 ; Matter of Ramroop v. Ramsagar, 74 A.D.3d 1208, 1209, 902 N.Y.S.2d 422 ; Matter of David WW. v. Laureen QQ., 42 A.D.3d 685, 686, 839 N.Y.S.2d 839 ; Matter of Kerwin v. Kerwin, 39 A.D.3d 950, 951, 833 N.Y.S.2d 694 ). Here, accepting her evidence as true and affording her the benefit of every reasonable inference, the mother failed to present evidence sufficient to establish a prima facie case of a change of circumstances which might warrant modification of the underlying custody order (see Matter of C.H. v. F.M., 130 A.D.3d at 1028, 14 N.Y.S.3d 482 ). The Family Court, therefore, properly granted the father's motion, made at the close of the mother's case, for judgment as a matter of law dismissing the petition for modification of the custody order.
“The grant or denial of a motion for ‘an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ ” (Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646, quoting Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 ; see Matter of Venditto v.
Davis, 39 A.D.3d 555, 831 N.Y.S.2d 725 ; Matter of Paulino v. Camacho, 36 A.D.3d 821, 822, 828 N.Y.S.2d 496 ). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v. Embro, 31 A.D.3d 651, 651, 819 N.Y.S.2d 75 ). Under the circumstances of this case, the Family Court providently exercised its discretion in denying the mother's request for an adjournment (see generally Matter of Ca'leb R.D. [Mary D.S.], 121 A.D.3d 890, 891, 994 N.Y.S.2d 395 ; Diamond v. Diamante, 57 A.D.3d 826, 827–828, 869 N.Y.S.2d 609 ; Matter of Venditto v. Davis, 39 A.D.3d 555, 831 N.Y.S.2d 725 ; Matter of Paulino v. Camacho, 36 A.D.3d at 822, 828 N.Y.S.2d 496 ).
The mother's contention that she was deprived of the effective assistance of counsel is without merit. Viewed in totality, the record shows that the mother received meaningful representation (see Matter of Dylan Mc. [Michelle M. Mc.], 105 A.D.3d 1049, 1050, 964 N.Y.S.2d 209 ; Matter of Marra v. Hernandez, 102 A.D.3d 699, 700, 956 N.Y.S.2d 908 ; Matter of Rodriguez v. Suarez, 93 A.D.3d 730, 730, 939 N.Y.S.2d 870 ).